Scothaven [2001] QBCCMCmr 4 (8 January 2001)

C G YOUNGREFERENCE: 0004-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4497
Name of Scheme:	Scothaven
Address of Scheme:	13 Michael Avenue MORAYFIELD QLD 4506

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Thomas Murray TINDALL, a co-owner of Lot 1,

I hereby order that -

1.	Mr Garth McGarry of Bribie Island Body Corporate Management Services, 5 McMahon Street, Bribie Island Qld 4507 is appointed Administrator to call and chair an annual general meeting (“the meeting”) of “Scothaven” in accordance with this order and within three (3) months of the date of this order.

2.	The Administrator will hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held.

I further order that within seven (7) days the Administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme.

I further order that –

(1)	For the purpose of calling and chairing the meeting, the Administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers -

• to further delegate any of those powers to another person; or

• to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(2)	Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3)	The Administrator must upon receipt of this order give at least two (2) weeks written notice for owners to submit motions for inclusion on the agenda of the meeting.

(4)	The meeting must consider and determine the matters set out in section 62(3) of the Standard Module.

(5)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module, and all other provisions relating to meetings under Part 4 of the Standard Module.

(6)	The meeting may consider any other motion before it.

(7)	The Administrator must not give notice of the meeting to owners earlier than twenty-one (21) days from the date of this order.

I further order that the meeting shall be deemed to be the First Annual General Meeting for the scheme. C G YOUNG2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0004-2001

“Scothaven” CMS 4497

The applicant, Thomas Tindall of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That Mr G.S.McGarry of Bribie Island Body Corporate Management Services, PO Box 747, Bribie Island 4507, be appointed to convene and conduct the first Annual General Meeting within a stated time.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 223(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting (section 223(3)(p)). Alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the community management statement (section 223(3)(v)).

The administrator has the powers given to the administrator under the order (section 248(2)). Section 248(3) provides that the order may –

a)	withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
b)	require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
c)	fix the administrator’s remuneration.

An order appointing an adjudicator may be the only order the adjudicator makes for an application (section 223(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The Body Corporate and Community Management Act (Standard Module) Regulation 1997 (the “Standard Module”) section 62 provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen –

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.

Moreover the agenda for the meeting must include the items set out in section 62(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 62(4)).

The information supplied by the applicant is that no records can be located to evidence the First annual general meeting, or any other meeting, having been held. The owner of the only other lot in the scheme, Lot 2, Gabriella Czinege has given her written consent to the appointment. The owners wish to have the appointment made so that the body corporate can be put on a proper legal footing for the administration of the scheme.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the standard module. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. ny